R v Rowsell, 1992 7096 (NL CA)
1992-08-14Newfoundland Supreme Court
Citation: R. v. Rowsell (R.)
Docket: 1991 No. 130
Raymond Rowsell (Appellant)
Her Majesty The Queen (Respondent)
Goodridge, C.J.N., Gushue and Mahoney, JJ.A.
Randy Piercey, for the appellant;
Thomas Eagan, for the respondent Crown.
 Goodridge, C.J.N.: The appellant was convicted of six counts of sexual assault contrary to s. 246.1(1)(a) of the Criminal Code, R.S.C. 1970, c. C-34, as amended, and one count of indecent assault contrary to s. 149(1) of the Criminal Code. Sentences were imposed upon him for each of the various offences aggregating six years in custody.
 Prior to the trial of the matter the appellant had made an application before Schwartz, J., of the Trial Division of the Supreme Court of Grand Falls for a stay of proceedings on the basis that he would not be tried within a reasonable period. Schwartz, J., had refused the application and the trial subsequently proceeded before Kevin Barry, J., who convicted him and imposed the sentences above mentioned.
 The appellant appeals the decision of Schwartz, J., denying the stay and also seeks leave to appeal and, if granted, appeals the sentences imposed upon him by Kevin Barry, J.
 The sections of the Criminal Code under which the appellant was charged are ss. 149(1) and 246.1(a) which provide:
“149(1) Every one who indecently assaults a female person is guilty of an indictable offence and is liable to imprisonment for five years.
“246.1(1) Every one who commits a sexual assault is guilty of
(a) an indictable offence and is liable to imprisonment for ten years.”
 The right which the appellant claims was denied is that contained in s. 11(b) of the Charter which provides:
“11. Any person charged with an offence has the right
(b) to be tried within a reasonable time.”
 The section of the Charter under which the appellant seeks relief is s. 24(1) which provides:
“24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.”
 The relief which the appellant sought was a stay of proceedings.
 In R. v. Askov, Hussey, Melo and Gugliotta, 1990 45 (SCC),  2 S.C.R., 1199; 113 N.R. 241; 42 O.A.C. 81; 59 C.C.C.(3d) 449; 79 C.R.(3d) 273 and in R. v. Morin, 1992 89 (SCC),  1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241; 71 C.C.C.(3d) 1, the Supreme Court of Canada listed the factors to be considered on an application for a stay in respect of the violation of the s. 11(b) Charter right. These factors are:
1. Length of Delay
2. Waiver of Time Period
3. Reasons for Delay
(a) inherent time requirements of the case
(b) actions of the accused
(c) actions of the Crown
(d) limits on institutional resources
(e) other reasons for delay
4. Prejudice to the accused
 If the delay is unexceptional then no inquiry is warranted unless the accused person is able to raise the issue of reasonableness of the period by reference to other factors such as prejudice.
 Because, as Sopinka, J., pointed out in Morin, there is a societal interest in having persons accused of a crime brought to trial, this too must be considered. The societal interest increases with the seriousness of the charge.
1. Length Of Delay
 The length of the time lapse must be evaluated in the light of the other factors to determine whether it is unreasonable. It may be tabulated as follows:
[Set out on following page]
 The time lapse from the information to the trial date was 517 days or 17 months. The interval time lapse from the laying of the information to the Preliminary Inquiry was 141 days or 4.6 months. There was an interval time lapse of 66 days from the preliminary inquiry to the preferring of the indictment. The time lapse from the preferring of the indictment to the trial date was 310 days or 10.2 months.
 The time to complete the transcript was 225 days or 7.4 months.
 The interval and aggregate time lapses in this case were exceptional and were so acknowledged by Crown counsel.
2. Waiver of Time Period
 The Crown does not argue waiver in this matter. However it is noted that, in the argument before Schwartz, J., the appellant had asked for two adjournments before being put to his election. This was not denied by defence counsel. Moreover when the appellant was arraigned on October 1, 1990, and the trial date of February 4, 1991, set, the appellant agreed.
 While the impression may have been left in Askov that agreement to a trial date does not necessarily amount to a waiver, the impact of the decisions in R. v. Smith (M.H.), 1989 12 (SCC),  2 S.C.R. 1120; 102 N.R. 205; 63 Man.R.(2d) 81; 52 C.C.C.(3d) 97 and in Morin is that agreement by an accused to a future date will in most circumstances give rise to an inference that the accused waives his right subsequently to allege that an unreasonable delay has occurred. Because the record is unclear on this point no conclusion as to the existence of waiver is made by this court but the matter will be considered hereafter under the title of actions of the accused.
*From Preliminary Inquiry
3. Reasons For The Delay
(a) Inherent Time Requirements Of The Case
 These are basically inconsequential.
(b) Actions Of The Accused
 There is no indication that the accused made any protest about the delay throughout the period tabulated above. It was not until the application for a stay was made on the date that the trial was scheduled to take place that the appellant showed any concern about the time that the matter was taking. His failure to express himself in this respect at an earlier date, while not necessarily fatal to his application, is a factor to be considered in determining whether the period that actually elapsed was unreasonable.
(c) Actions Of The Crown
 There is no indication that there were any actions on the part of the Crown that delayed the matter.
(d) Limits On Institutional Resources
 Basic delay arose here from the preparation of the transcript. In the absence of an explanation, this delay must be considered both exceptional and unwarranted.
 The arraignment took place shortly after the transcript was complete and the trial was set for four months thereafter. This is not an exceptional delay.
 In R. v. Lambert 1992 7115 (NL CA), (1992), 99 Nfld. & P.E.I.R. 165; 315 A.P.R. 165 (C.A.), it was noted that average delays from information to trial in Grand Falls is 10.7 months and from indictment to trial is 7.15 months. The comparative figures in this case were 17 months and 10.2 months. While average times are not necessarily reasonable, they provide a comparison which assists a court in making a determination as to whether the lapsed period in a particular case is unreasonable.
 The delay in the provision of the transcript must be termed an institutional delay.
 Exceptional institutional delays must initially be noted but not necessarily termed unreasonable. If they are suffered to persist however and there is no reasonable and acceptable explanation for their persistence the court may eventually regard them as being unreasonable.
(e) Other Reasons For Delay
 There were no other reasons for the delay. It appears to be almost entirely due to the failure to provide the transcript in a timely manner.
4. Prejudice To The Accused
 Some prejudice to an accused person may be inferred from the fact that he is being prosecuted for a criminal offence. Such prejudice may be described as general prejudice. It is up to the Crown to show that there was no such prejudice, or less than might otherwise be inferred.
 There may be special prejudice. The onus is on the accused to show special prejudice.
 In this case, no special prejudice has been shown and the general prejudice is so slight as to be virtually negligible.
 The societal interest in having an accused person brought to trial must be considered. As noted, this interest increases with the seriousness of the offence. The charges in this case are serious, being sexual assaults against young children.
 This is a consideration in determining whether the lapsed time is unreasonable. It should not be regarded as an invitation to the Crown to allow serious matters to be unduly delayed.
 Upon an overview of the matter, we are of the opinion that the trial judge was not in error in denying the stay. In doing so, however, we express concern that the preparation of the transcript should have taken so long. If that type of delay in the preparation of transcripts had been demonstrated to have been present for a long period of time without improvement and had been seen to be a cause for delay in bringing matters to trial, the court might very well have taken a different view.
 The delay in the transcript was not justified. It cannot be said, however, in this case that that fact alone rendered the total time lapse unreasonable.
 The appeal from the order denying the stay is therefore denied.
 There was also an application for leave to appeal and, if granted, an appeal from the sentences imposed. The appellant was charged with similar offences which were tried before another judge. Because the issue of totality arises it is desirable that the sentence appeal in this matter and the other be resolved in a separate decision. Appeal dismissed.